MacCarthy and Comcare
[2003] AATA 1235
•2 December 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1235
ADMINISTRATIVE APPEALS TRIBUNAL )
) No D2000/11,18
GENERAL ADMINISTRATIVE DIVISION ) Re RUTH MacCARTHY Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President Don Muller Date2 December 2003
PlaceBrisbane
Decision 1. The Tribunal sets aside the decision under review in respect of the claim for permanent impairment of the lumbar spine and in substitution decides that Ruth MacCarthy has a work related 10% whole person permanent impairment in relation to her lumbar spine.
2. The Tribunal otherwise affirms the decisions under review.
3. The Tribunal determines that there be no order for costs................SIGNED...............................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
WORKERS COMPENSATION – whether applicant suffers from work related permanent impairment in relation to her back, shoulder and anxiety and depression
REASONS FOR DECISION
Deputy President Don Muller 1. Ruth MacCarthy, the Applicant, claims workers compensation for three conditions:
(a)Constant pain in lower back;
(b)Injury to left arm and shoulder; and
(c)Psychological trauma leading to anxiety and depression.
2. Mrs. MacCarthy claims that her injuries arose out of her employment at the Family Court Registry, Darwin, in 1996.
3. Mrs. MacCarthy gave evidence that her back was injured on 13 March 1996 when the following incident occurred whilst she was working as the receptionist in the counselling section:
“I was at work lifting piles of files from the floor at my workstation. Each bundle of files would have contained about ten files and I guess would have weighed a couple of kilograms. As I bent over to pick up a bundle of files, I felt a sudden sharp pain in my back. I experienced increasing pain in my left side, lower back and leg. At first I sat down thinking that the pain would go away. When it didn’t I notified my supervisor who was Kay Moore. I then went and saw my general practitioner, Dr. Samarawickrama.”
4. Mrs. MacCarthy gave evidence she later injured her left arm and left shoulder when she used her left arm to support herself and to move herself around the work station in her chair. She said in evidence:
“As I recall I was put off work for about three days before returning to my usual duties. I found that it was very painful to get out of my chair. To avoid pain I found that I would use my left arm to drag myself around my work station in my chair rather than get up out of my chair and walk a couple of steps to another part of my work station. Over the next two months I began to notice increasing pain in my left arm and shoulder. Eventually this got to the point where I could not lift my left arm at all. I again consulted my GP. This was on about 23 May 1996 and I was off work for about one day.”
5. Mrs. MacCarthy claims that her psychiatric problems arose out of various confrontations with the then Director of Court Services, Ms. Walker. She said in evidence that she believed that Ms. Walker was unsympathetic to her requests to modify the design of her work station to allow for her back, arm and shoulder condition. There then began an ongoing dispute between Mrs. MacCarthy and Ms. Walker about proposed changes to the work station. The relevant parts of Mrs. MacCarthy’s evidence in relation to this aspect were:
“In the meantime I had raised with both Sally Walker and Kay Moore the fact that my back was continuing to cause me problems and my left shoulder was becoming increasingly painful.
In about June 1996 my employer called in an occupational therapist from IRS. The occupational therapist’s name was Katherine Evans. Because of the increasing pain in my left arm and shoulder and because my back was not getting any better, I was again put off work on payments of compensation from approximately 24 June 1996 to about 5 July 1996. During this time I was interviewed by Katherine Evans and had a meeting with her and Kay Moore. Katherine Evans indicated some possible changes that could be made to my work station to make things easier for me. However, later that day Sally Walker came past and called me outside. Sally Walker then said to me words to the effect of: ‘You needn’t think it’s going to be done, we don’t have the money.’
In the meantime, prior to going on leave on 18 July 1996 I had repositioned my computer and reorganised my desk so that it was easier for me to use. When I returned from leave I found that my computer and desk had been put back in the state that they were in prior to my rearranging them. No ergonomic chair had been provided. I felt very upset about this because I was trying to return to work and the arrangement of my work station was critical to this. I rang Katherine Evans and she said to me words to the effect of ‘There have been objections to my recommendations’. I spoke to Joan Cruse who said that ‘Sally Walker told Phil Cob to move it back’. Phil Cob was the building maintenance officer employed at the Family Court.
The atmosphere at work when I returned in August was pretty oppressive. The layout of my work station was causing me a lot of pain, no ergonomic chair had been provided and I felt there was a lot of hostility being directed at me by Sally Walker. We said as little as possible to each other.
By late August 1996 I was feeling terribly depressed about my work situation and I was continuing to experience a lot of pain in my left shoulder and arm and in my lower back. I was again put on workers compensation before making a brief return in September which was no happier.
During October and November 1996 I was at work for about four hours per day. The changes to my work station that had been recommended by my GP and the rehabilitation service provider were still not made. I was however given a plastic mat which made moving my chair about the work station somewhat easier. I was also off work on a number of occasions in October and November and I missed most of December. I was certified unfit for work by Dr Brownjohn for pretty much all of January through to about mid May 1997. From about mid May 1997 I was certified fit for a graded return to work two hours per day, three days per week.
This return to work proved to be unsatisfactory and from 16 June 1997 I was again certified unfit for work. I did not return to work that year. I was also certified unfit for work for most of 1998. I attempted to return to work on light duties two hours per day on alternate days from about 10 August 1998.
During none of my attempted returns to work at the Family Court did I feel that I was being offered any support or assistance. I felt that the rehabilitation service provider was trying her best but that her efforts were being frustrated by Sally Walker who had taken a set against me. I was hardly the only person who had had problems with Sally Walker and I believe that the Family Court’s personnel records would support this. In my view, Sally Walker decided to make things as unbearable for me as possible which she succeeded in doing.
On 11 October 1996 I lodged a complaint with the Human Rights & Equal Opportunities Commission about the treatment I was receiving from both Sally Walker and the Family Court. I received advice from the Anti-Disability Discrimination Commission.
When I lodged my complaint with the HREOC I felt great anxiety but I felt it was essential to resolve the problems at work if ever I was going to get back to work.
In September 1997 I received HREOC’s decision which found that neither Sally Walker nor the Family Court had a case to answer. I had found the whole process very stressful and I found the outcome particularly upsetting.
I requested a review of the HREOC decision without success and then put in an appeal. The appeal was turned down in December 1997.
The HREOC proceedings upset me greatly but I was still of the view that the only thing to do was to get back to work. I was not however keen to return to work at the Family Court unless I would have a safe workstation and unless the problems with Sally Walker could be at least put into some sort of order.
In July 1997 I received a letter from the Family Court saying that I was excess to requirements and in December 1997 I received an offer of voluntary redundancy which I refused. I was advised by my union and by others that the redundancy was not in my interest.
The principle work I did in 1997 was a placement at the Army Base at Larrakeyah which was part of my return to work and found by IRS. IRS agreed that it was probably not advisable to attempt to have me return to work at the Family Court given the situation there. I did not mind the work at Larrakeyah but it was very hard on my back and shoulder. Eventually I was forced to stop the work placement because the back and shoulder pain I was experiencing.
In 1998 I had a further placement, this time with Centrelink. That was in about October and went through to about February. The work itself was very repetitive and consisted mainly of writing names on files. The atmosphere at work was not very good a the Department had just been affected by a merger and there was a lot of job insecurity.
I also did a work placement with VOCAL, a community support organisation. This was from about February 1999 to about April or May 1999. I have been interested in this placement because I thought I would be good at it and it would suit the things I was learning at university. However, I found the work very stressful because I was constantly having to deal with people’s problems. The last straw was when I kept running into people from the Family Court. My job involved me manning the office and telephones, taking the initial telephone call from a distressed person etc. I found the stress involved in his job unbearable. VOCAL also wanted me on ‘on call’ 24 hours a day as part of my employment duties. I simply could not cope with that level of demand.
I have not worked since that time.”
6. Mrs. MacCarthy claimed compensation on:
20 March 1996: for “musculo-ligamentous strain low back and sacroiliac joint dysfunction” arising out of the 13 March 1996 incident; and
19 November 1996: for “left arm and left shoulder strain and stress”
7. On 24 April 1997, Comcare accepted liability in the following terms:
“I refer to your claim for compensation in respect of ‘left arm and shoulder pain and stress’ and wish to advise that I have amended primary liability on your existing claim to ‘sacro-iliac strain and aggravation of pre-existing arthritic changes in the lower interfacetal joints with possible soft tissue injury to lumbar spine’.
Furthermore, based on the assessments provided by Psychiatrist, Dr McLaren and Orthopaedic Surgeon, Dr Jackson and the factual evidence submitted to date, I have extended liability to reflect the conditions of ‘adjustment disorder and soft tissue injury to left arm and shoulder’ as having resulted from the primary condition noted above.”
8. On 18 November 1998, Mrs. MacCarthy submitted a claim for permanent impairment in the following terms:
“Sacro-iliac joint strain, aggravation of lumbar arthritic changes, full annular tear L4/5 disc, persistent weakness in left leg and ankle causing loss of balance, torn rotator cuff in left shoulder and strained right shoulder, repetitive strain disease in both hands and arms, sensory loss in all fingers, neuro-dermatitis and loss of hair on scalp as a result of stress, anxiety and depression, loss of sexual enjoyment and weak bladder. Forgetfulness and constantly fatigued.”
9. On 17 February 1999, Mrs. MacCarthy lodged a claim for “psychological trauma and physical assault”.
10. On 5 May 1999, Comcare made the following decisions regarding permanent impairment:
(a)In view of Dr. Curtis’ opinion, I am not satisfied that your condition can be considered to be permanent and stabilised as further recommended active treatment may result in reducing the effects of the injury and any permanent impairment.
I therefore determine there is no liability to pay compensation to you in respect of any impairment under section 24 of the Safety, Rehabilitation and Compensation Act 1988 in respect of sacro-iliac joint strain and aggravation of pre-existing arthritic changes in the lower interfacetal joints with possible soft tissue injury to the lumbar spine, at this time.
(b)Dr. Burvill has stated that you are suffering from depression and anxiety disorder, which he relates to your employment circumstances with the Family Court. Whilst he has not given an assessment of permanent impairment under the Comcare Guide to the assessment of the degree of permanent impairment, on the evidence on file, I am satisfied that you can be regarded as suffering from a 10% whole person impairment under Table 5.1 of the Guide.
On the basis of available evidence I determine that you suffer a permanent impairment of the compensable injury of adjustment disorder and the degree of that impairment is 10% whole person.
The total amount of compensation payable has been assessed as $21,258.03, which consists of $11,262.53 for permanent impairment under Section 24 plus $9,995.50 for non-economic loss under Section 27. Reasons for this assessment are enclosed.
11. On 20 May 1999, Mrs. MacCarthy’s solicitors sought a reconsideration of the above determination.
12. On 10 March 2000, by way of reconsideration, Comcare decided:
“Physical condition
I find that there is sufficient evidence to show that you did sustain an injury to your back, as claimed, on 13 March 1996. I find that this injury is best described by the diagnosis made by Drs Jackson, Molloy and Curtis. These doctors agree, on the basis of investigation and testing, that you have a small prolapse of the lumbar disc. Further, these doctors agree that surgical intervention was not required, and there appears to be a consensus that the level of incapacity resulting from this prolapse is low.
I am satisfied also, that you are currently experiencing an injury to left shoulder, which you allege occurred as a result of pulling yourself around on your chair, following your back injury. You contend that your back injury was too painful for you to arise from your chair to move around your work area, and this caused you to pull yourself with your arm, over carpet. You have described that this pulling motion was not eased with the purchase of a floor mat.
I find that there is no clear diagnosis available for this injury. Dr Curtis was unable to ascertain whether this was a rotator cuff or soft tissue injury, as he did not have access to the results of the MRI conducted in January 1997. Dr Molloy described this injury as neck and upper left limb pain, which may be due to a cervical disc injury. She comments that the MRI scan shows no abnormality. Dr McLaren suggested in his report of February 1997, that you had been referred by Dr Brownjohn, because of ‘Pain in your neck, shoulders and back’.
Dr Samawickrama described this injury in his report of 16 February 1997 as ‘pain [which] originated from the neck and shoulder musculature’.. Dr Jackson considered your injury to be a soft tissue injury in his report of 16 March 1997. Dr Sankarraya commented in his report of 28 January 2000, that were operated on in relation to a sub acromial impingement. Dr Sankarayya further diagnosed you with bicipital tendonitis.
I have carefully considered the various diagnoses that have been offered in relation to your continuing shoulder pain. I have considered the events that lead to the onset of this pain (pulling a chair around on carpet), the initial diagnoses, the information available from various tests that have been conducted.
I find that this soft tissue would ordinarily have resolved within a period of six months from its onset. I enclose a copy of the Statement of Principle for a Rotator Cuff injury, and am satisfied that insufficient elements have been met to support a diagnosis of rotator cuff syndrome.
I have considered the further diagnosis of sub-acromial impingement and bicipital tendonitis. While I note surgical intervention in the impingement, I have not received any evidence which supports that this impingement is the result of the need to pull your chair around.
I note that the majority of diagnoses of the injury at the time it occurred were for a soft tissue injury. I also note that you have not been at work for some 12 months, following your withdrawal from the Centrelink work trial. I therefore do not believe, on the balance of probabilities, that the tendonitis condition can be attributed to your employment.
I find that, on the balance of probabilities, you experienced a musculo-ligamentous injury to your shoulder from manoeuvring your chair. I find that, on the balance of probabilities, the ongoing pain that you have reported in relation to your psychological condition, as a functional overlay. I therefore determine that there is no further liability for this injury.
2. Major depressive disorder with non psychotic paranoid symptoms which were seen as a complication of a severe stress reaction resulting from her back injury and other conflict at work.
….
I accept that your disappointment about these issues and time frames led you to develop adverse perceptions about your workplace as a result of not achieving the outcomes that you would have wished, and that these perceptions led to anxiety and depression. But simply showing these perceptions about the workplace is not the same as showing the workplace caused the depression: Van Houten and Comcare (1997).
I have also considered this issue in light of the Moneeb decision, and again find that your claim is one which is covered by the exclusionary provisions outlined earlier – namely a failure to obtain a benefit. That it, that in failing to have workstation modifications made with your desired timeframe, you have lodged claim for a failure to gain a benefit. On this basis, compensation is not payable.
Decision
1. Ongoing Liability of claim
I have now reviewed the medical and other evidence regarding your claim. I have determined that your back injury is a small disc prolapse, which does not require surgical intervention, and which does not incapacitate you. I find that you suffered a musculo-ligamentous injury to your shoulder, which has now resolved. I further find that your psychological claim, Major depressive disorder with non psychotic paranoid symptoms is based upon events which exclude it from being compensable.
1a. Notice of Intention to cease claim
On the basis of all the evidence above, I am proposing to cease your entitlements to compensation on and from 7 April 2000. You have until this date to provide me with any reasons and medical evidence as to why I should not cease liability.
2. Decision of 5 May 1999 re Permanent Impairment
The determination of 5 May 1999 awarded a 10% whole person impairment as a result of the alleged victimisation which occurred at the Family Court to you. I have determined that on the balance of probabilities, these events fall into a category of events for which compensation is not payable.”
13. On 17 April 2000, Comcare determined to cease liability for all conditions suffered by Mrs. MacCarthy.
14. On 20 April 2000, Mrs. MacCarthy sought a reconsideration of the decision to cease liability.
15. On 11 May 2000, Mrs. MacCarthy applied to the AAT for a review of the decision of 10 March 2000 (ie to reject a claim for permanent impairment).
16. On 19 June 2000, Comcare affirmed the determination made on 17 April 2000 to cease liability for 7 April 2000 in relation to all of the conditions.
17. On 18 July 2000, Mrs. MacCarthy applied to the AAT for a review of the decision of 19 June 2000 (to cease liability from 7 April 2000 in relation to all conditions.)
18. Mrs. MacCarthy relies on the following medical witness and their reports (among others):
Peter Lugg: Consultant Orthopaedic Surgeon, report dated 7 July 2000:
Mrs MacCarthy says she cannot do normal household activities such as washing dishes, hanging clothes, dressing herself or washing her hair. She says she is unable to play any sport at present. She used to enjoy walking and other activities but her left leg is too weak and painful to allow her to do this. She says she is unable to enjoy sex unless she takes painkillers. Other more aggressive sports that she used to participate in such as racquetball, competition netball and dancing are completely off the map at the present time.
One other symptom that she mentioned was that since having traction from a physiotherapist for back pain she developed numb upper thighs and has had some urinary dribbling ever since. I asked if this had been looked at by her local doctor and she said it had not. I advised her to have this problem addressed.
Past History:
Mrs. MacCarthy claimed that her only past history of back pain was the back pain associated with periods. Otherwise she had never suffered significant back pain. She denies any problems with either shoulder in the past.
Investigations:
Mrs MacCarthy did not bring any investigations with her. Reports of an MRI scan taken on 6 May 1999, visualising the left shoulder, was essentially normal.
Plain x-rays of both shoulders demonstrated a cystic lesion in the neck of the scapular on the right side, probably a chondroma. This was not followed up in any other report that I could see. The plain x-rays of the left shoulder taken on the same date were normal. An ultrasound of the left shoulder was also normal. The plain x-rays and ultrasound were taken on 31 March 1999.
History:
The history of this lady’s condition has been outlined in the report above. It interests me that what originally was a potentially minor problem has seemed to cascade into a much more significant problem for this lady, with not only left shoulder pain but the development of depression and anxiety, and almost a chronic regional pain syndrome as time has passed.
Diagnosis:
The diagnoses and associated prognosis for each, in relation to your client’s condition are as follows:
· Low back pain, probably as the result of a lumbo-sacral disc tear. The prognosis here is fair. Intermittent trouble will always be experienced from this condition. The pain down the left leg is likely to be referred pain from the lumbar disc injury. It is possible that subsequent to the MRI scan in 1997 there is now some nerve root compression.
· Impingement syndrome involving the left rotator cuff. This has had surgery, unfortunately complicated by stiffness and pain. A secondary mild global capsulitis has occurred. This is likely to slowly but spontaneously improve.
· Anxiety and depression. Advice regarding the prognosis on this should be sought from her psychologist or psychiatrist.
Assessment:
Under Table 9.1 of the Comcare Guides, the table that I think is best and most appropriate for assessing upper limb impairment, there would be a 10%.
Under Table 9.6 in assessing impairment of the lower back there would be a 10% impairment due to a loss of less than half the normal range of movement. Similarly there would be a 10% impairment under Table 9.5 due to the loss of function of the lower limbs, particularly the left leg.
My estimate of Mrs MacCarthy’s total whole person impairment would therefore be 19% when the three 10% impairments are added using the Combined Values Charts. My estimate of her pain and suffering is an impairment level of around 25% to 30%.
On the balance of probabilities I think that the back condition does relate to her work. She has radiological evidence of an annular tear in the lumbosacral disc and the history she gives, given well before the radiological evidence, was of a twisting forward movement to lift something. This is a classical way of developing an annular tear. Her description of the severe pain at the time is also consistent with an annular tear. The subsequent history is a fairly typical history that one will express when a degenerate disc, the long-term result of an annular tear, develops.
Similarly with the shoulder she describes the shoulder condition developing because she had to push her chair around with the left arm, once her back had been injured. This action is a good way of developing supraspinatus tendonitis. Unfortunately she then developed what would clinically appear to be an adhesive capsulitis and this is sometimes a consequence of the surgery performed in Adelaide. Thus I believe that both these conditions directly relate to her work. The subsequent development of anxiety and depression is in my inexpert opinion, also related to the physical condition.”
In his oral evidence, Dr. Lugg said that he saw no evidence of muscle wasting and that Mrs. MacCarthy had essentially normal shoulders. He said that her orthopaedic injuries would not prevent her from working. He thought that she had pre-existing degenerative changes because of her bulging discs.
Dr. Michael Hayes: orthopaedic surgeon:
“In view of the persistence of the patient’s discomfort, I proceeded to carry out an arthroscopic evaluation on her left shoulder on the 18th November, 1999. At the time of surgery, there was definite evidence of sub acromial impingement in the left shoulder and an arthroscopic acromioplasty was performed.”
In his oral evidence, Dr. Hayes made the following points:
· Mrs. MacCarthy is not unemployable provided that she does no heavy lifting.
· She could have a congenital abnormality in the shoulders and her problems have taken years to develop – possibly since 1993.
· X-rays showed no major spur.
· Her apparent problems and restrictions seem to be more excessive reactions than he would expect from the physical evidence.
· She does not have a “frozen shoulder”.
Dr. Noel McLaren, psychiatrist.
He has been Mrs. MacCarthy’s treating psychiatrist since December 1996. He has been seeing her every two weeks since he began treatment.
In a report dated 21 February 1997 he said:
“This employee is suffering from a major depressive disorder with some non-psychotic paranoid symptoms. Etiologically, this is a complication of a severe stress reaction resulting from what she believes to be mistreatment of her accepted back condition and direct abuse from her supervisor. Unfortunately, the American (DSM IV) system of diagnosis is vague to the point of incoherence on these complicated cases. She suffered a chronic stressor and developed a reaction to that which intensified and was subsequently complicated by the appearance of major depressive symptoms.
Since her disorder is the response to many, relatively minor stressors, it cannot be diagnosed as an acute stress reaction. It is also outside the bounds of a chronic stress reaction because it has continued after the stressors have been relieved. Correctly, it would be an adjustment disorder but, once again, that excludes a response to repeated minor stressors. In my view, this type of diagnostic hairsplitting does not benefit the patient, and I suggest that she simply be given a diagnosis of chronic stress reaction with secondary depression.
She is responding adequately to treatment but it is absolutely clear that a resolution of her many difficulties with her supervisor etc. is an essential part of her rehabilitation. In fact, there will be no rehabilitation until these grievances are resolved one way or the other. As it stands, Mrs. Bond’s prognosis is not good. There is approximately a 10% chance of a significant permanent disorder and about a 40% chance of a minor permanent disorder.
It would be very difficult for this lady to return to her former position and I would obtain the services of rehabilitation consultant to initiate the process of redeployment immediately. Everything hinges on a satisfactory resolution of her grievances and I think this should be attended to first.
In my opinion, her present disorder is entirely attributable to work. She has shown herself throughout her life to be a person capable of withstanding significant psychological pressure without developing symptoms and there is no indication in her premorbid functioning of a predisposition to adult mental disorder. Her present condition renders her unfit for work but planning for a graduated return-to-work program should begin as soon as possible.”
In oral evidence, Dr. McLaren said that he doubted if Mrs. MacCarthy would recover until her legal matters were resolved. He said that her “sense of injustice muddies the waters”. He believed that her complaints of pain in her shoulder and back are an important part of her psychiatric problem.
Dr. Petros Markou, psychiatrist, reported on 30 August 2002:
“Medical History: Mrs. MacCarthy’s medical history is well documented. In summary, her medical history had been unremarkable until 1996 when, after working in the Family Law Court, she sustained a back injury resulting in significant pain. Some months after this injury, Mrs. MacCarthy sustained a left shoulder injury, and this has in addition resulted in a significant degree of pain and impairment. It should be noted that these injuries have occurred in the context of a stressful and apparently hostile work environment, whereby Mr. MacCarthy’s supervisor was frequently critical, unreasonable and unwilling to support her with respect to accommodating the injuries that she had suffered. Soon after these physical injuries arose, Mrs. MacCarthy began to suffer psychological symptoms, notably depression, symptoms of anxiety, lethargy, lack of motivation and interest in daily life, and disturbances of sleep and appetite. These psychological symptoms have fluctuated over time, have remained essentially unchanged, save for some improvement following the commencement of an antidepressant medication. She has been seeing a psychiatrist since around 1997.
Current medical status Mrs. MacCarthy remains depressed, demoralized, with poor sleep and appetite, little motivation or energy, feeling ‘worn out’, and unable to see a bright future for herself. She continues to experience symptoms of anxiety and agoraphobia, and in addition continues to experience both back and shoulder pain.”
19. One of the problems associated with the medical reports and medical evidence tendered on behalf of Mrs. MacCarthy in the context of this claim for workers compensation, is that the medical witnesses have proceeded on the assumption that prior to 1996 Mrs. MacCarthy had no significant medical history. See the “Past History” in Dr. Lugg’s report, the final paragraph quoted from Dr. McLaren’s report, and the “Medical History” statement by Dr. Markou. In fact, Mrs. MacCarthy had an extensive medical history prior to 1996. The records available to the Tribunal show that Mrs. MacCarthy was treated for the following medical problems on the following dates (among others).
(a)Laparoscopy: 15 October 1991
(b)Aching joints and lethargy: 15 April 1992
(c)Left sided weakness and tingling in fingers: treated by Dr. Pugsley, Adelaide consultant physician – nephrologist who reported on 21 October 1992.
“Mrs. Grebens (MacCarthy) certainly had her hands full and I can’t say that I can provide a convincing pathological explanation for all the various problems that she poured out to me. In particular I find it difficult to say what might be causing the complaints of left sided weakness and tingling in the fingers and feet. I don’t think I would dismiss such a unilateral finding as psychological, but on neurological examination I could detect no definite abnormality in her motor or sensory systems so I think that will have to be put on hold.
It appears that she has been diagnosed as having a small kidney on the right side and has also had a number of problems with endometriosis over many years – most recently managed by Ray Anderson at Alice Springs. She also claims to have had some urinary tract infections and bouts of palpitations with some fever and recent weight loss. She has had a tubal ligation in the past. On examining her she seemed generally well and was afebrile and normotensive. The urine contained no abnormalities. She was very tender in the RIF with, I thought, quite a distinct impression of a tender mass of around golf ball dimensions. It wasn’t possible to feel it more definitely than that.”
(d)Migraines:
2 May 1992 – Royal Darwin Hospital
“Pain in L side & weakness 1 yr. Sudden onset one a.m, has fainted a lot in past. Feels tired, palpitat’ increasing, headache. RDH – Migraines, F/HTBP Palpitations. ?Stroke Aneurism mother. O/E 108/62 Blds – cause?”
(e)Anxiety or stress reaction or depression:
June 1993
30 September 1993
“Stressed up – from interpersonal relations at work – emotional
Felt L side weak following this incident at work.
Re Melenax 30mg ½ node”
29 April 1994
“Tired and depressed – shoulder pain”
4 July 1994
“Tired Poor Sleep Churning tummy uptight, …..
Stress at work Emotional for no known reasons HAD A17 D12”
5 November 1994
“Backpain – Tiredness – Emotional – Periosteal Pecking – 1
not gone for 6/12 Hysterectomy checkup
Depression → Letter to Housing Comm re bath tub”
16 August 1995
“Stressed up due to her to go back to previous job – Does not like to work”
11 September 1995 to 15 September 1995
“Has to go back to original place of work – Stressed up
Stress & Anxiety Counsellor
Things are bad now → Has a meeting ć Union
Has now settled the matter - be working with the present place for another 4 weeks then to a different dept or same Dept → Cannot sleep”
(f)Back or neck pain or injury
2 October 1992
“Back pain for a few months”
23 June 1993
“Pain in neck back and front of chest”
15 July 1993
“Neck pain and echoing in ears”
11 September 1993
“Chest pain – 2 days entire chest – tightness and no radiation – now has pain at …. Back – left scapula”
31 March 1994
“Pain upper back with deep breathing”
7 April 1994
“Back pain persists”
13 April 1994
“Upper back pain started on Saturday”
15 July 1994
“Back pain especially right lower lumbar – 2 days on and off 4 years”
6 January 1995
“C/O Backache since hysterectomy for endometriosis.
Had fall in 1990. No recent injury
C/E – ISP both iliac fossae R7 > L7. … Multi steroid abd. BS normal”
27 May 1995
“Upper back pain – constant – worse with deep breathing – tender T4/T5 tenderness ++”
8 June 1995
“Pain in left upper back”
6 – 21 July 1995
“Acupuncture left upper back and left shoulder”
(g)Shoulder pain
11 September 1993 – pain left scapula
29 April 1994 – shoulder pain
21 July 1995 – acupuncture left shoulder
(h)Abdominal pain
8 February 1993 – abdominal pain for three days
December 1993 – pains in loins and abdomen – radiating down left leg
July 1995 – abdominal pain since yesterday
(i)Other problems
3 December 1994 – sometimes urine comes out in dribbles
20. The medical witnesses who did not support Mrs. MacCarthy’s claim were:
Dr. Baddeley reported on 7 April 1998:
“There is no doubt that her symptoms are nonorganic in nature and are fuelled by anxiety, stress and the acrimony that exists between herself and her employer.
She has fallen to a very significant degree amongst well meaning medical practitioners and therapists and appears to have relinquished her own independence with regards to management of her back problem.
Examination reveals that she is Waddell 5/5 and she demonstrates no objective signs of nerve root involvement or any other specific back problem. She falls very clearly into the nonspecific low back problem with the satellite problems of lower limb pain, fluxuating weakness, neck pain, shoulder pain and weakness of the upper limbs.
As is frequently the case her xrays and MRI scans show no lesion to explain any of her symptoms. The presence of age related changes in her lower discs has been seized upon as the pathological cause of her problems which it is quite obviously not.”
In his oral evidence, Dr. Baddeley said that there were no objective signs of any problems.
Dr. Robin Jackson, orthopaedic surgeon reported on 16 March 1997:
“When I questioned her regarding any previous history of spinal problems she stated that she had not previously experienced any problem with her back. However, I note again on referral to the letter from Dr Samarawickrama that he stated quite clearly that Ms Bond had been seen in March, April, November and December 1994, and again in July 1995 with low back pain. Dr Samarawickrama stated that this back pain appeared to be mechanical in nature. She was not on any medication at the time of her injury.
Upper Limbs/Shoulder Girdles:
Appearances were normal and there was no complaint of tenderness or evidence of muscle wasting.
I considered that there was a slight degree of hyper-reactivity.
There was no abnormality noted in her elbows, wrists, hands or fingers.
Muscle power and sensation appeared normal and deep tendon reflexes were symmetrical.
CT scan of the Lumbar Spine (13 June 1996): This showed no disc abnormality although there were mild to moderate changes and facet joint arthrosis at all levels, these being most advanced on the right at L4/5 and lumbosacral levels. Cuts through the sacrum and sacro-iliac joints showed very minimal reactive degenerative features affecting the sacro-iliac joints. There was no evidence of inflammatory or erosive disease and no sign of intrinsic bone abnormality.
X-ray of the Lumbosacral Spine (4 December 1996): There is a normal lumbar lordosis and AP alignment. No disc space narrowing or spondylosis is shown. There are no lumbar neural arch defects. The sacro-iliac joints are normal.
With reference to the letter from Dr Gervin Samarawickrama, I note that he stated that an x-ray of her lumbosacral spine taken on 11 June 1996 showed no abnormality.
MRI scan of the Lumbar Spine (12 February 1997): Conclusion: There was a right paracentral full thickness annular tear at L5/S1 with a shallow disc bulge. This was confined to the anterior epidural space with minimal displacement and no compression of the descending right S1 nerve root. No left sided abnormality has been demonstrated. No abnormality was noted at L3/4 or L5/S1 levels.
She has received very extensive investigation and conservative treatment. It is evident that there is a major psychological component to her symptoms.
Although the MRI scan demonstrates an annular tear at the L5/S1 level, and this would suggest significant disc damage here, there is no evidence that this was actually as a result of the incident she described in March 1996.”
Dr. Nave, orthopaedic surgeon, reported on 10 October 2000:
“This lady continues to suffer in relation to her lower back and her left shoulder. Her disability in both areas would appear to be far greater than I would have expected from the mechanism of injury described in each case. The original injury to the back would be consistent with an aggravation of pre-existing, apparently asymptomatic, lower lumbar degenerative change. The left shoulder condition, from the history, would have been consistent with a soft tissue strain to the left shoulder girdle. The arthroscopic abnormalities have been noted. At this stage the left shoulder condition appears more consistent with a secondary capsulitis or frozen shoulder. With respect to the lower back, the persisting symptoms, from an orthopaedic point of view, would relate to the lower lumbar degenerative change.
The above conditions have developed in relation to her employment. The clinical picture has become somewhat complex with the unexpected level of pain and the associated psychological factors. There would only be a very small component related to employment still continuing with respect to the lower back from an orthopaedic point of view alone. With respect to the left shoulder, it would appear that a secondary frozen shoulder has occurred, although it is difficult to determine, clinically, how much restriction in movement relates to pain and how much relates to stiffness or to each. It would appear that there was significant restriction in movement of the left shoulder prior to the surgical procedure in view of the findings of Dr. Curtis earlier in 1999. In both cases, therefore, one could not totally exclude a small physical component persisting in relation to employment.
When one uses the attached Guides for Assessment of Permanent Impairment, it is noted that these relate to restriction in movement, basically. With respect to Table 9.1 and the upper limb, just less than half range of movement of the left shoulder is lost and, therefore, a ten percent whole person impairment is assessed. In relation to Table 9.6 for the spine, the impairment is twenty percent because the patient exhibits a loss of more than half range of movement of the lumbar spine.”
In his oral evidence Dr. Nave made the following points:
· Mrs. MacCarthy’s shoulder is not a major injury – it should not cause problems for work.
· The injuries should have gotten better within a few weeks.
· If there was underlying degeneration a small annular tear could occur fairly easily – but it would not prevent Mrs. MacCarthy from working.
Dr. Kutlaca, psychiatrist, reported on 16 February 1998:
“In my opinion, Ms Bond’s (McCarthy) reaction to Mrs Walker had been very substantially predetermined by the rigidly conservative and discriminatory circumstances of her childhood and, in particular, in the hostile relationship with her mother and elder sister. The method of discipline was passive and, I strongly suspect, very powerful and gave rise to a bitter, rebellious and passively angry personality. The developmental history, the intensity of her presentation, her inflexibility, her somatic complaints and the inconsistent quality of her depressed mood all suggested an individual with a predominantly borderline, narcissistic and paranoid personality structure. I submit that this formulation applies irrespective of Mrs Walker’s role in the subject matter.
In terms of management, as mentioned, it is essential that a valid evaluation of Ms Bond’s organic complaints be carried out forthwith. In psychiatric terms, I strongly agree with Dr McLaren that there will be no improvement in her mental state without the resolution of her grievances ‘one way or the other’. I disagree with my colleague in that I do not consider her present complaints entirely attributable to her employment and strongly suggest a predisposition to psychopathology under particular circumstances. I wondered about undiagnosed psychopathology during the course of her first marriage, certainly in the terminal phase, and would not accept without question the opinion she provided of her ex-husband
In essence, Ms Bond’s attitude towards Mrs Walker in the interview was intense hatred and I consider that only an individual predisposed to so doing is able to maintain the same indefinitely. I disagree with Dr McLaren in terms of the prognosis as Ms Bond has previously demonstrated the ability to leave home and a dysfunctional marriage. The resolution of compensation litigation will result in prompt diminution of her complaints. I finally consider that her employment with the Family Court of Australia is not materially contributing to her condition.”
Dr. Byth, psychiatrist, reported on 17 October 2000:
“13. Prognosis
13.1Her Personality Disorder is a lifelong condition which would not be expected to vary much with time.
13.2Her Chronic Pain Disorder has a poor prognosis. She has a strong belief of severe physical illness, a lack of insight into the contribution of psychological factors in her pain behaviour, and entrenched habitual ‘sick role behaviour’.
14.Discussion and Recommendations
14.1Ruth MacCarthy is suffering from Chronic Pain Disorder associated with both psychological factors and a general medical condition.
14.2She also has a Personality Disorder with obsessive-compulsive and sensitive personality traits.
14.3Her Personality Disorder is not caused by her work. This condition reflects her genetics and overall constitution, and has not been exacerbated by her work.
14.4The main causes of her Chronic Pain Disorder are her Personality Disorder and associated acquired ‘sick role behaviour’. She has developed habitual learnt pain behaviour which has continued beyond any acute soft tissue injury she might suffered at work in 1996.
14.5Her Chronic Pain Disorder has been perpetuated by a strong belief of serious physical illness, and her withdrawal from normal daily activities, reinforced by her reliance on assistance from her family and the helping professions.
14.6I did not believe that her Chronic Pain Disorder is being contributed to by her employment. Rather, it has been perpetuated by her Personality Disorder and its associated tendency towards psychological regression and abnormal illness behaviour.
14.7Her complaints of depression and anxiety about her relationship with her supervisor at work reflect her sensitive personality makeup, along with feelings of entitlement to special treatment associated with Personality Disorder.
14.8I did not believe that her interaction with her supervisor, or failure to obtain a satisfactory workstation, led to any significant depressive illness or Adjustment Disorder. These symptoms were related to her hypersensitivity and Personality Disorder rather than work-related.
14.9Any contribution from her employment to her Chronic Pain Disorder would have ceased some 2-3 months after March 1996.
14.10I did not believe that her complaint of chronic back pain following the incident in March 1996 led to the development of Chronic Pain Disorder. Her chronic back pain has been a function of her Personality Disorder and her acquisition of abnormal illness behaviour, and is not caused by her work.
14.11Her conditions of Chronic Pain Disorder and Personality Disorder can be considered permanent i.e. likely to continue indefinitely. Neither of them are caused by her work. I would consider her level of psychiatric impairment, from the combined effects of Chronic Pain Disorder and Personality Disorder, to be at a level of 10%.
14.12I believe that she would be able to considerably improve her level of daily functioning, if she chose to forego her belief of severe physical illness, and strove to view herself as an improving and potentially well person.
14.13Regarding future employment, she appears to be currently capable of some part-time study at university. I believe she could now undertake light part-time clerical or administrative duties, if she chose to.”
Dr. Byth gave oral evidence and made the following points:
· The build up of anger and angry response is uncommon in cases of major (or clinical) depression.
· Mrs. MacCarthy has a personality disorder which causes her to attribute everything that is wrong in her life to Ms. Walker for no good reason.
· Mrs. MacCarthy completed a two year Diploma course in Human Resources Management as a part-time student over the last three years. She should be able to cope with secretarial duties.
· Mrs. MacCarthy told him that she had no medical problems prior to 1996.
21. Ms. Walker gave evidence. She made the following points:
· She denied ever slapping Mrs. MacCarthy on the face at a Christmas party in 1995.
· She denied harassing Mrs. MacCarthy.
· She was not Mrs. MacCarthy’s direct supervisor, and they worked on different floors. Mrs. MacCarthy’s supervisor was Kay Moore.
· Up until late June 1996 her relationship with Mrs. MacCarthy was quite normal. They had talked about Mrs. MacCarthy’s upcoming wedding. Mrs. MacCarthy told Ms. Walker that she was doing the majority of the wedding preparations herself – making the dresses, arranging the flowers and making the cake.
· Ms. Walker was invited to Mrs. MacCarthy’s wedding on 24 July 1996. Ms. Walker did not go to the wedding because she had a rule not to get involved at a personal level with staff.
· When Mrs. MacCarthy returned from her honeymoon on 12 August 1996, Ms. Walker asked her to trial a new arrangement for one week. Mrs MacCarthy then went off work on sick leave. Later, while Mrs. MacCarthy was on sick leave, modifications were done to the work station which were completed on 3 October 1996.
22. The T-Documents contain a number of statements from former work colleagues of Mrs. MacCarthy. None of them substantiate Mrs. MacCarthy’s claim of work-place harassment. On the contrary they suggest that the management seemed to attempt to accommodate Mrs. MacCarthy’s concerns.
23. A former employee at the Family Court Registry, Susan Ruth Jonsson, was called to give evidence of what she observed whilst she worked there. Her term at the Registry was for 11 months, from September 1995 to July 1996. Unfortunately, Ms. Jonsson fell on the Court steps in November 1995 and broke her foot. She did not return to work until April 1996. She and Mrs. MacCarthy worked on different floors. They did not see much of each other. Mrs. MacCarthy went off work on 24 June 1996 to 5 July 1996. Ms. Jonsson said that she found working in the Family Court stressful and on one occasion Ms. Walker had given her a “dressing down” for leaving the compactus open (when she in fact had not done so).
24. The Tribunal finds that prior to the time when Mrs. MacCarthy worked in the Family Court counselling section she had for many years experienced lower back pain, due to degenerative disease, left shoulder pain and psychiatric problems described variously as anxiety, depression and adjustment disorder.
25. The Tribunal finds that on balance Mrs. MacCarthy aggravated her degenerative lumbar spine at work in March 1996. The Tribunal accepts the assessment of Dr. Nave that she has a 20% whole person permanent impairment in relation to her lumbar spine. However, only a part of this impairment is due to aggravation arising out of, or in the course of her work. Giving Mrs. MacCarthy the benefit of the doubt, the Tribunal finds that the work related component reaches the 10% threshold and is therefore compensable.
26. The Tribunal finds that although Mrs. MacCarthy had left shoulder problems before the incident in 1996, she also suffered a soft tissue injury in her left shoulder at work at the Family Court. That soft tissue injury should have well and truly healed by now, leaving Mrs. MacCarthy with the shoulder problems she had before 1996. Her current shoulder problems are not compensable.
27. The Tribunal finds that Mrs. MacCarthy was not harassed at work at the Family Court. Further, the Tribunal finds that a reasonable effort was made by the supervisors to accommodate Mrs. MacCarthy’s desire for changes to the work station. The Tribunal also finds that Mrs. MacCarthy’s back and shoulder problems played no part in her developing or aggravating her psychiatric problems. They were not of sufficient severity to do so. In any event Mrs. MacCarthy’s psychiatric problems seem to have been of long standing and certainly pre-date 1996. The Tribunal finds that Mrs. MacCarthy’s psychiatric problems were not caused by, contributed to, nor did they arise out of, nor in the course of her work at the Family Court.
28. The Tribunal also finds that Mrs. MacCarthy is capable of doing secretarial work.
29. The Tribunal sets aside the decision under review in respect of the claim for permanent impairment of the lumbar spine and in substitution decides that Ruth MacCarthy has a work related 10% whole person permanent impairment in relation to her lumbar spine.
30. The Tribunal otherwise affirms the decisions under review.
31. The Tribunal determines that because Mrs. MacCarthy was offered a 10% whole person permanent impairment award on 5 May 1999, that there be no order as to costs.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller.
Signed: .......................................................................................
B. Hitchcock, SecretaryDate/s of Hearing 15-19.4.02, 19.9.03, 27.8.03
Date of Decision 2 December 2003
Counsel for the Applicant Ms. Webb
Solicitor for the Applicant Ward Keller
Counsel for the Respondent Ms. Ford
Solicitor for the Respondent Dibbs Barker Gosling
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